The Force awakens – The Schrems case from a German perspective

Just like Star Wars, the “Solange” saga about German constitutional order’s approach to fundamental rights protection in the context of European integration appeared as a story told and settled. But now there are rumours that in Germany Solange Episode III is in the making, with a release date around 2016. The ECJ’s Schrems decision will bring some turmoil to the Solange Episode III production in Germany.

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Negotiating the Data Protection Thicket: Life in the Aftermath of Schrems

The Schrems judgment of the ECJ has implications for the viability of the commercial practices of Internet giants (and minions), for the legality of state surveillance practices and for the future sustainability of an Internet that is global rather than parochial. It is thus not surprising that the Court of Justice of the EU delivered its judgment only one week after the Opinion of the Advocate General and that this judgment has attracted so much academic and media attention, including through the existing commentary on this blog. In adding to this commentary, I shall not rehash the well-versed facts but shall focus on three points which I found striking.

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The Sinking of the Safe Harbor

The judgment of the Court of Justice of the European Union (CJEU) in Schrems v. Data Protection Commissioner (Case C-362/14) is a landmark in EU data protection law, but one about which I have serious misgivings. While I share the Court’s concern regarding the surveillance practices of the US government (and other governments for that matter) and some of its criticisms of the EU-US Safe Harbor Arrangement, I take exception to its lack of interest in the practical effects of the judgment and the global context in which EU law must operate.

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The Essence of Privacy, and Varying Degrees of Intrusion

What is remarkable in the CJEU’s Schrems decision is that a) the Court actually identified the intrusion in question as falling under the notion of the essence of privacy – something the European Court of Human Rights has never done under the privacy provision of ECHR Article 8, and b) the identification of an intrusion as compromising the essence of privacy meant that there was no need for a proportionality assessment under Article 52 (1.2) of the Charter. For these reasons, the Max Schrems judgment is a pathbreaking development, a major contribution to the understanding of the structure and legal effect of fundamental rights under the Charter.

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